Salman and Ertas v Holroyd City Council

[2005] NSWLEC 690

Land and Environment Court

of New South Wales

CITATION:

Salman & Ertas v Holroyd City Council [2005] NSWLEC 690

PARTIES:

APPLICANT
Salman & Ertas

RESPONDENT
Holroyd City Council

FILE NUMBER(S):

11526 to 11532 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Interim Findings - Subdivision - dual occupancy development

DATES OF HEARING:

05/07/2005, 14/11/2005

EX TEMPORE JUDGMENT DATE:

11/14/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr Mr G Salman, self represented

RESPONDENT
Ms K Gerathy, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

14 November 2005

11526 of 2004 Salman & Ertas v Holroyd City Council
11527 of 2004
11529 of 2004
11530 of 2004 Salman v Holroyd City Council
11531 of 2004
11532 of 2004

FINDINGS

This decision was given extemporaneously. It has been revised and edited prior to publication.

1 These proceedings involve 6 appeals arising out of council's refusal to the proposed staged development of adjoining lots at 208 Targo Road, Girraween. The adjoining lots have a common rear boundary and otherwise each face two different streets i.e. Carinya Road and Targo Road.

2 The staged development applications comprise:

• a subdivision to create rear hatchet allotments,
• the construction of single storey villa houses on the newly created rear hatchet-allotment,
• the construction of a 2-storey duplex on the front of these allotments.

3 The subject site is Lot 73 in DP 8768 208 Targo Road, Girraween, together with the adjoining site. The full details of the property, the site, the locality and all the statutory controls are contained in the statement of basic facts, on which I rely.

4 A number of issues were identified arising out of the refusal of the application and they basically deal with the overdevelopment of the proposal in terms of inadequate setbacks, excessive FSR and non-compliance with the minimum subdivision lot sizes.

5 In order to deal with these appeals the parties agreed to the appointment of Mr Terry Byrnes as a Court appointed expert for planning matters and he prepared a detailed assessment report.

6 The appeal commenced at an on-site hearing (OSH), at which Mr Byrnes attended and expressed his opinion was that the overall development did not merit consent. He did not support the proposed plans and indicated aspects he considered unsatisfactory, which mainly related to the unsatisfactory impacts of the duplexs at the front.

7 At the OSH there was the opportunity for the parties to discuss the proposal and there was agreement by the parties that the matter should be adjourned, so the applicant could make some further amendments. In the meantime, prior to the resumption of the hearing today, amended plans were prepared and they are contained in Exhibit B.

8 With respect to the subdivision stage, there is a revision in the new subdivision lot sizes, so that they now have a depth of 26.7 m, which is marginally below the 27 m stipulated in the controls. The rear villas remain basically the same and there is to be some amendments to the duplexes on the front lots, particularly the deletion of the third bedroom and opening up the internal layout.

9 These amendments have been further assessed by Mr Byrnes and he is still dissatisfied with aspects of the duplex at the front of the lot. One of his concerns is that the FSR has marginally increased for these buildings, rather than decreasing. He is not satisfied with the reconfiguration of the internal layout because the DCP specifies that if internal rooms appear as though they could be used for bedrooms or otherwise, this is unacceptable. Associated with this, is his primary concern that the excessive floorspace in the front duplexes does not allow sufficient space to create a satisfactory streetscape impact.

10 The relevant planning controls are contained in DCP 4B. The objectives are contained in section xv. I understand from Ms Gerathy’s submissions that there has been a detailed review of the controls that apply to this type of development and these objectives in the DCP are primarily designed to improve the provision of environmentally sensitive dual occupancy development. Also, the other objective is to create an urban design, which is based on a comprehensive site and streetscape analysis which positively contributions to the streetscape.

11 In the absence of any other substantive evidence, I am inclined to accept Mr Byrnes’ opinion, considering he is an experienced planner, that the streetscape impact of the current proposal for the duplex is not satisfactory. Furthermore, considering the opportunities for this reasonably large, unconstrained site, then a higher degree of conformity and compliance with the recently adopted controls should be required.

12 Therefore, I accept the opinions and conclusions of Mr Byrnes, which nevertheless would allow the first subdivision stage to be conditionally approved. However in the circumstances, I note that further review of the conditions is required to separate those conditions appropriate to the various stages.

13 With respect to the staged conditions, I consider any subdivision consent should provide a minimum lot depth of 27 m, as required by the DCP. Insofar as the deficiency of 0.3 m is relatively minor, nevertheless I consider it reasonable for this control to be satisfied. In this regard, I accept the detailed evidence from council, that there has been a consistency in application of these controls and there does not appear to be any compelling reason why that extra 0.3 m cannot be applied to the rear lot. Therefore the first stage subdivision could be approved on this basis.

14 Following on then, Mr Byrnes’ evidence is that the new rear lots are then satisfactory for approval of the second stage, proposed villa homes, because they demonstrate reasonable compliance with the prevailing controls.

15 In terms of the third stage of the development, I consider it reasonable and appropriate to assess the overall development in terms of the totality of the site, to achieve an orderly planning outcome. As the minimum 27 m depth is part of that, the remaining area then allows the opportunity for new dwellings to be erected on those front lots. But this remaining area then dictates the amount of floor space that can be achieved. This may necessitate some reduction in the floor space proposed, so that the objectives for the area are achieved.

16 Therefore, my findings at this point, are that the subdivision stage could receive conditional consent, but the final conditions need to be resolved. Also the conditions relating to the access and the drainage arrangements require fine tuning, so that final consideration to the future erection of the dwellings can be given in regard to the practicalities of integrating the landscaping, so the ultimate development is presentable development and makes a satisfactory contribution to the streetscape.

17 With respect to the dwelling houses, based on Mr Byrnes opinion, I do not consider the current proposal merits consent. However I note the discussion between the parties, that minor amendments, including a reduction in floor space, could probably achieve a satisfactory outcome. But that would require consideration of the amended plans, together with the associated, staged conditions, that require preparation.

18 I then accept that a reasonable community outcome could likely be achieved by the adjournment of these proceedings to allow the further amendments, subject to some agreement by the parties for costs associated with reassessment of the amended plans. In my opinion, it is fairly clear what the concerns expressed by Mr Byrnes are and what degree of change is necessary to demonstrate reasonable compliance with the controls. I do not consider it involves a major re-design, although it necessitates some reduction in floor space and improvement in streetscape presentation.

19 Following the discussion between the parties and agreement for adjournment the following directions are made.

Directions

1. The parties to confer on the staged conditions and file/serve the agreed conditions by 5 December 2005.

2. The applicant to amend the duplex plans by 5 December and council to notify its position by 19 December.

3. Matter referred to e-Court on 20 December 2005, although the parties have

liberty to apply at two days, if required to expedite the matter.

___________________
R Hussey
Commissioner of the Court
Ljr/rjs